A federal appeals court panel on Monday struck down Virginia’s ban on same-sex marriage, and that decision could have major political and legal implications for North Carolina.
The three-judge panel on the 4th U.S. Circuit Court of Appeals, which includes North Carolina, declared that Virginia’s laws placed an unconstitutional limit on the right to marry.
N.C. Attorney General Roy Cooper thinks Monday’s decision will undo North Carolina’s ban on same-sex marriages, and he has no plans to intervene.
Cooper said that it now would be “futile” to continue defending North Carolina’s ban against challenges from within the state. Four cases involving North Carolina’s ban are pending now.
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“Simply put, it is time to stop making arguments we will lose and instead move forward, knowing that the ultimate resolution will likely come from the U.S. Supreme Court,” Cooper said in front of a bank of television cameras at his office.
North Carolina voters in 2012 decided by a wide margin to encode a ban on gay marriage into the state’s constitution. The court’s ruling Monday won’t immediately affect that.
But the decision means that challenges to North Carolina’s ban would likely succeed in lower courts, according to Carl Tobias, a professor of constitutional law at the University of Richmond.
Unless the U.S. Supreme Court reverses Monday’s ruling, the judges in those cases will have to declare North Carolina’s ban unconstitutional, Tobias said.
Cooper, a Democrat who won his first term as Attorney General in 2000, agrees.
“Our office believes the judges in North Carolina are bound by this 4th Circuit decision,” he said. “In addition, the State of North Carolina will acknowledge the 4th Circuit opinion that marriage is a fundamental right.”
Tobias sees that as a “pragmatic” decision, interpreting Cooper’s announcement like this: “ ‘I’m not going to drag this out with procedural machinations that are really only that. We’ve lost on the merits,’ is what he’s saying.”
Senate President Pro Tempore Phil Berger and House Speaker Thom Tillis, both Republicans, questioned Cooper’s loyalty to voters and his office.
“Better than 60 percent of the people of North Carolina voted to have this provision put in our constitution,” Berger said in an interview. “I think the attorney general should defend the constitution that the people of North Carolina voted for.”
Tillis, who is running for U.S. Senate, had similar sentiments.
“The people spoke clearly on this issue,” he said in a statement. “Too many politicians ignore the will of the people, and it is clear that the Attorney General did just that today.”
The two politicians last year hired outside lawyers to look over the attorney general’s shoulder in gay marriage cases. A bill passed last year also gave them authority to intervene “on behalf of the General Assembly” in legal challenges of the state’s laws.
The 2-1 decision by the appeals court Monday upheld a Virginia District Court judge’s February ruling, which struck down a voter-approved ban on gay marriage. The Virginia ban also forbids recognition of same-sex marriages or civil unions from other states.
Writing for the majority, Judge Henry F. Floyd wrote: “The choice of whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”
The decision probably won’t allow same-sex marriages in any state anytime soon. The defendants in the Virginia case are expected to request a delay in its effect until the case runs its course.
That conclusion may come at the U.S. Supreme Court, next year at the earliest, but legal observers expect a flurry of action now in the lower-level cases pending in North Carolina and other states throughout the circuit.
In North Carolina, the ACLU and ACLU-North Carolina Legal Foundation have filed two federal lawsuits in U.S. District Court in Greensboro.
The organizations have sued on behalf of three lesbian couples seeking swift legal action to recognize their marriages. One member of each couple has serious health concerns, which they contend are made more difficult by the lack of legal recognition of their unions.
A similarly themed lawsuit, filed in 2012 and amended in 2013, challenged the ban and its effect on how a same-sex couple cared for a child with cerebral palsy.
In April of this year, a group of clergy filed a federal lawsuit contending that the gay marriage ban violated their religious freedoms.
“Winning the freedom to marry is no longer a matter of IF, it’s a matter of WHEN,” Chris Sgro, executive director of Equality NC, which advocates for gay, lesbian, bisexual and transgender North Carolinians, said in a statement after the ruling.
“And we’re close, but we’re not there yet – as today marks a historic first step forward, while we continue to look to the Supreme Court to provide a final, national resolution to this rising call for marriage equality in our home state and beyond.”
Nineteen states and the District of Columbia currently recognize same-sex marriages. Dozens of challenges of laws restricting the unions are pending in at least 30 states.
Cooper, who is widely considered to be a possible candidate for governor in 2016, previously has said that he personally supports same-sex marriage but would defend the state’s laws. He said Monday that he decided not to defend North Carolina’s ban because he could make no effective argument in a case that already appears headed to the U.S. Supreme Court.
“Our attorneys have vigorously argued this case every step of the way, “ he said. “ There are really no arguments left to be made.”
Staff writer John Frank contributed.